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1. The right to conduct proceedings in England and Wales is conferred on you by the HSWA 1974, section 39(1), and by your certificate of appointment, otherwise known as your warrant card. 1 Production of your warrant card should be sufficient to prove this. You should ensure that your warrant is available in court. 2
2. Unless the court otherwise directs, you have the right to have a colleague take notes, quietly proffer advice or prompt. 3 You should not undertake prosecutions on behalf of any other enforcing authority.
3. An inspector conducting a prosecution should not also give evidence. If it appears likely that you will need to give evidence you should ensure that another inspector conducts the case. It is unlikely that this will be necessary in the case of a guilty plea.
4. A District Judge or chairperson of a bench is addressed as 'Sir' or 'Madam'. Magistrates can be individually addressed as 'Your Worship' or collectively 'Your Worships'. . The justices' legal adviser should be referred to as ‘Your learned legal adviser’ when addressing the bench and, when spoken to directly, as Mr or Ms X. Both the bench and the legal adviser should be treated with deference and courtesy.
5. You should stand when addressing the court and when spoken to by the court. You should sit if your opponent rises to speak at any point. You should introduce yourself at the beginning of any hearing and inform the court that you appear to prosecute. You should then introduce any legal representative of the defence.
6. You should speak distinctly and slowly. Technical matters should be explained simply. The clerk and magistrates are likely to take notes and you should ensure that you allow them enough time to do so.
7. A magistrate should not adjudicate on a case if:
8. This test of bias applies in all cases, whether concerned with magistrates, or members of other tribunals, with jurors or with arbitrators. 5 In HSE prosecutions it may need particular consideration if the defendant is a large local employer and a magistrate in the case may, for example, be an employee or local councillor.
9. A magistrate who knows there could be an objection to his or her sitting on the case should take the initiative and withdraw, or at least bring the matter to the attention of the parties. 6 Any objection to a magistrate sitting should be made before the case proceeds.
10. The hearing of an information in England and Wales must be in open court 7 and similarly the decision must be given in open court. Magistrates have an inherent power to regulate the procedure in their courts in the interest of justice and expeditious trial.
11. In general neither the court nor the justices' clerk should take an active part in the proceedings, except to clear up ambiguities in the evidence. 8 The court should only exercise its discretion to allow the clerk to examine witnesses where there are reasonable grounds for thinking that this is in the interests of justice, for example, where an unrepresented party is not competent; but not if the party concerned is legally represented, or where an unrepresented party is competent and desires to examine witnesses. After a witness has given evidence in chief and has been cross-examined, the magistrates may ask questions in order to clarify issues.
12. The court may visit the place at which the alleged offence has occurred. 9 Such a viewing is part of the evidence.
13. Unless a definite time is fixed for the hearing you should be at court at the commencement of the sitting. If you do not appear at the appointed time the court may dismiss the case. It is always advisable to arrive no later than thirty minutes before the hearing.
14. Check from the court list which court the case will be in and inform the usher that you will be appearing on behalf of the prosecution. You should note your opponent's name. If you are expecting witnesses to attend you should provide the usher with a list of their names.
15. If the defendant is an individual who fails to appear 10 the court may:
16. A warrant for the arrest of a person who has attained the age of 18 shall only be issued if the offence to which the warrant relates is punishable with imprisonment. 11
17. If the defendant is a corporation, the court may proceed in its absence 12 or adjourn.
18. You should decide whether or not to make an application to proceed in the defendant's absence, which may include making mode of trial submissions. You should not make an application to proceed if you are aware of any possible legitimate reason for the non-attendance (eg. illness). The court will examine the history of the case to determine whether it is in the interests of justice to proceed. 13
19. Where the defendant does not appear, and the court decides to proceed or to issue a warrant, you may need to prove service of the summons. It may be advisable to request an adjournment so that you can attempt to serve the summons personally. You can then, if required, give evidence of service of the summons.
20. Where a defendant individual does not attend and the court adjourns the case, it may issue a warrant for the arrest of the defendant providing either it is proved the summons was served on the defendant within a reasonable time of the hearing (on oath or otherwise), or the adjournment now being made is not the first adjournment and the accused was present on the last occasion and was made aware of the next hearing date. 14.
21. The court has the power to proceed to try the information in the absence of the defendant if service of the summons is proved (either on oath or another manner), or if the defendant has previously appeared in answer to a summons and was aware of the trial date. 15 Inspectors should seek advice from LAO if they anticipate such a situation arising.
22. A conviction will be set aside if the defendant declares within 21 days of first becoming aware of the case that s/he was unaware of the proceedings at the time of conviction. 16
23. If the prosecutor fails to appear the information may be dismissed, 17 but this should not happen if you are known to be on your way. You should contact the court if you are likely to be late.
24. If a voluntary witness fails to attend at the hearing of the summons, you should discuss with the solicitor agent or counsel presenting the case whether to request an adjournment and make an application for a witness summons.
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